Jersey Unreported Judgments

2002/143

ROYAL COURT

(Samedi Division)

 

2^nd August, 2002

 

 

The Attorney General

-v-

Ray Wilkinson Builders Limited

 

1 count of:

Contravening Article 21(1)(a) of the Health and Safety at Work (Jersey) Law, 1989, as amended, by failing to ensure that an employee was provided with (a) safe plant; and (b) necessary instruction, training and supervision.

 

Plea:    Facts admitted.

 

Details of Offence:

A 19 year old apprentice joiner, Mr Wells, sustained serious injuries to his hand when working on a spindle moulding machine at the company's workshop.  The machine was unguarded and the apprentice had had no formal training in its use.  Just before the accident, Mr Wells asked a more senior operative, Mr Fraser, to take over the work he was undertaking.  The two employees effectively swapped jobs, Mr Wells moving to the spindle moulding machine.  There was no guard on the machine and as the wood was fed past the revolving cutters, the work snagged, pulling Mr Wells' right hand into the cutter blade.  His right thumb was fractured and lacerated deeply, involving approximately 70% of the circumference of his thumb, exposing the bones.  There was a deep laceration to his right index finger.  His injuries were dealt with under general anaesthetic but unfortunately infection led to a second operation.  The spindle moulder failed to meet required standards of stability or guarding in that there was a failure to adequately guard the transmission belt drives and the transmission drives themselves; the machine wobbled due to an uneven floor; the electrical cable feeding the machine was damaged exposing the internal conductors; and a channel appeared to have been created in the floor to run the electric cable, creating a tripping hazard.  A Prohibition Notice was immediately served.  There were no formal training or supervision arrangements, Mr Fraser never having been formally made a foreman.

 

Details of Mitigation:

Immediate response to Prohibition Notice, taking the machine out of action and ordering a new, replacement machine.  Prompt guilty plea.  No previous convictions.  Not a deliberate flagrant breach, no suggestion that company breached the Law for profit.  Mr Wells, who was off work for 8 months, continued to receive full pay and had returned to work for the company.

 

Previous Convictions:

None.

 

Conclusions:

£10,000 fine, with £2,000 costs.

 

Sentence and Observations of Court:

£7,000 fine, with £2,000 costs; 6 months to pay, taking into account the Company's present acute cash flow problems.

 

Mrs S. Sharpe, Crown Advocate.

Advocate R. Juste for the Defendant Company.

 

 

JUDGMENT

 

THE COMMISSIONER:

1.        The defendant company was formed in the year 2000 by Mr Brian Wilkinson and his wife; for that reason it has no previous criminal record.  They are the directors and sole shareholders.  Mr Wilkinson was operating as a sole trader from 1992, but even before that he was involved in the building trade.  The previous company run by him and his wife went into voluntary liquidation in 1992.  We do not know, and we do not need to know, the reason for his, but at the time Mr and Mrs Wilkinson lost all their personal assets and their family home.

2.        The spindle moulding machine was purchased when Mr Wilkinson, as sole trader, took over the lease of Unit 4 Thistle Grove, St Lawrence, which premises are held on lease by the defendant company.  The company is solvent but it has an overdraft, and while it owes £30,000 it is owed some £97,000.  Mr Wilkinson as director says in his affidavit that were it not for one particular debt the company would now be doing fairly well.

3.        The Wilkinsons have four children, one of whom is at University, the others live at home.  Their house is pledged to a bank as security for the company's overdraft facility.  We have to note that as Directors and shareholders last year the Wilkinsons drew some £139,000 from the company.  They have personal savings of £15,000.  That is the financial situation but we must bear in mind when considering the fine to be imposed on a plea of guiltily, that this is a serious breach of the law.

4.        The company advertises itself as builders and decorating contractors as well as cabinet makers and joiners.  The risks associated with woodworking machinery are high; but this apparently depends upon the level of competence of the operator and the use of guards and equipment.  Mr Wells, who sustained this injury, was a nineteen year old apprentice with no knowledge of this machinery.  The machine that caused the accident was old.  It was purchased in the 1990's, and there was no manual to show how to use it. 

5.        Mr Wells was left more or less unsupervised and the machinery caused the timber to jump.  His injuries were serious.  As Crown Advocate Sharpe has told us, his thumb was fractured at its tip and dislocated further down.  The tendons were ruptured and the laceration involved about 70% of the circumference of the right thumb.  There was also a "V" shaped laceration down the pulp of the right index finger, the bones were exposed and he was operated on.  His thumb was fixed with wires and the wounds of the right index finger were closed.  The damaged tendons were repaired with sutures.  He was discharged from Hospital on the 11^th January, 2002.  Unfortunately, about a month later, Mr Wells was in pain and his right thumb had swollen.  An infection was suspected and he had to go to Hospital that same day to undergo removal of the wires under a general anaesthetic. 

6.        The Health and Safety inspectors who attended at the premises immediately after the accident noted that it was a very old machine which did not meet the required standards in respect of stability or guarding and they noted four particular faults.  There was a failure to guard the transmission belt drives and the transmission drives themselves adequately; the machine wobbled due to an uneven floor; the electric cable feeding the machine was damaged exposing the internal conductors and a channel appeared to be created in the floor to run the electric cable creating a hazard by tripping.

7.        Mr Wells, in his statement, said that he had never used a spindle moulding machine at Highlands or any machine such as bench saws.  The fact that he was left to gain experience as he went along does no credit to the company.  The fact that there was a large knot in the wood and Mr Wells had to press down on the wood because of that no doubt helped to cause the accident. 

8.        Advocate Juste admits that the machinery was old and that Mr Wells did not know that it was dangerous.  There were people in the workshop who had experience and all the full time workers were trained.  A Mr Fraser was supervising Mr Wells at the time; he had taken a calculated view that because of the cut the use of the guards would not be practical.  He had some eight years' experience.  His decision was taken on the spur of the moment and, after questioning from us, Advocate Juste candidly admitted an act of laziness by an experienced operator who was responsible for the trainee's safety.  In any event the equipment was outdated, which is evidenced by the fact that the company purchased a new machine on the 22^nd January, 2002, for some £2,500, and that of course goes to the company's credit.

9.        Although Mr Wells was off work for some 8 months, he was paid by the company and has apparently made a full recovery and is still employed by the company working out his apprenticeship.  We have carefully considered the law and particularly the case of R-v-F. Howe & Son (Engineers) Ltd (1999) 2 All ER.249, which gives guidance in assessing the fine that has to be levied.  We must bear in mind that this case was meant not only to punish, but to serve as a warning to others, as the judgment says:

"The objective of prosecutions for health and safety offence in the workplace is to achieve a safe environment for those who work there and for other members of the public who may be affected.  A fine needs to be large enough to bring that message home."

10.      The machinery has been replaced.  We can regard this as an unusual, one-off, incident and we do not see that the company has a safety record which need cause any concern.  In the circumstances, we are going to lower the fine, but it must be sufficient to be a warning to others, and we are therefore going to levy a fine of £7,000 with £2,000 costs, to be paid within 6 months.

Authorities

R-v-F. Howe & Son (Engineers) Limited (1999) 2 All ER.249.

AG-v- PDB Carpenter & Builders Limited (2^nd September 1994) Jersey Unreported [1994/177].